Bringing The Panopticon Home: The Uk Joins The Schengen Data System
November 27, 2018
Edit
Steve Peers
Over ii hundred years ago, British philosopher Jeremy Bentham devised the concept of the ‘Panopticon’: a prison home designed so that a jailer could inwards regulation picket whatever prisoner at whatever time. His theory was that the mere possibility of constant surveillance would create expert demeanor inwards prison home inmates. In recent years, his view for a panopticon has exceed away a shape of shorthand for describing developments of majority surveillance in addition to social control.
The EU’s forays inwards this surface area began amongst the creation of the Schengen Information System (SIS) inwards the 1990s. The SIS is a well-known EU-wide database containing enormous amounts of information used past times policing, immigration in addition to criminal law authorities.
Baca Juga
Until now, the Great Britain has non had whatever access to the SIS. But this week, the European Union Council hold out approved the UK’s participation inwards the System, thereby linking the EU’s most iconic database amongst the intellectual dwelling line of piece of occupation solid of the panopticon theory. What are the specific consequences in addition to broader context of this decision?
Background
The primary purpose of the Schengen organization is to abolish internal edge checks betwixt European Union Member States, equally good equally some associated non-EU States. At the moment, the total Schengen rules apply to all European Union Member United States of America except the UK, Ireland, Cyprus, Romania, Republic of Bulgaria in addition to Croatia. Those rules also apply to 4 associates: Norway, Iceland, Switzerland in addition to Liechtenstein.
All of the Member United States of America are obliged ultimately to exceed away component subdivision of the Schengen system, except for the Great Britain in addition to Ireland. Those ii Member United States of America negotiated an exemption inwards the shape of a special Protocol at the fourth dimension when the Schengen rules (which originated inwards the Schengen Convention, ie a treaty drawn upwards exterior the European Union legal order) were integrated into the European Union legal system, equally component subdivision of the Treaty of Amsterdam (in forcefulness 1999).
The Great Britain in addition to Republic of Ireland are non alone excluded from the Schengen system. In fact, they negotiated the alternative to apply to bring together only some of the Schengen rules if they wished. Their application has to live approved past times the Council, acting unanimously. The Great Britain in addition to Republic of Ireland essentially chose to opt inwards to the Schengen rules concerning policing in addition to criminal law, including the SIS, but non the rules concerning the abolition of internal edge controls in addition to the harmonisation of rules on external borders in addition to short-term visas.
The UK’s application to this halt was approved inwards 2000 (see Decision here), in addition to Ireland’s was approved inwards 2002 (see Decision here). But inwards club to apply each Decision inwards practice, a carve upwards subsequent Council determination was necessary, because the Schengen organization cannot live extended before extensive checks to come across whether the novel player is capable of applying the rules inwards practice. On that basis, most of the Schengen rules which apply to the Great Britain receive got applied from the outset of 2005 (see Decision, after subsequently amendments, here). The exception is the rules on the SIS, which the Great Britain was non in addition to so laid to apply. After spending considerable sums trying to link to the SIS, the Great Britain gave upwards trying to attain so, on the reason that the European Union was anyway planning to supercede the SIS amongst a second-generation organization (SIS II). There’s a lot of farther background item inwards the House of Lords written report on the UK’s intention to bring together the SIS (see here), on which I was a special advisor. (Note that Republic of Ireland does non apply whatever of the Schengen rules inwards exercise yet).
It took ages for the European Union to larn SIS II upwards in addition to running, in addition to it hold out accomplished this chore past times Apr 2013 (see Decision here). The Great Britain had planned to bring together SIS II presently after it became operational, but this was complicated past times the physical care for of opting out of European Union criminal law in addition to policing measures adopted before the entry into forcefulness of the Treaty of Lisbon, in addition to simultaneously opting dorsum inwards to some of them again, on Dec 1st 2014 (see intelligence of that physical care for here). This included an opt dorsum inwards to the SIS rules.
Once that exceptional slice of political theater concluded its concluding act, the European Union in addition to the Great Britain returned to the concern of sorting out the UK’s opt inwards to SIS II inwards practice. This week’s decision completed that process, giving the Great Britain access to SIS II information starting from March 1st. The Great Britain tin genuinely usage that data, in addition to locomote into its ain information into the SIS, from Apr 13th.
Consequences
What just does participation inwards the SIS entail? The details of the organization are laid out inwards the 2007 Decision which regulates the usage of SIS II for policing in addition to criminal law purposes. There are also carve upwards Regulations governing the usage of SIS II for immigration purposes and giving access to SIS II information for government which register vehicles. The old Regulation provides for the storage of ‘alerts’ on non-EU citizens who should inwards regulation live denied a visa or banned from entry into the EU, spell the latter Regulation aims to ensure that vehicles stolen from 1 Member State are non registered inwards some other one. The Great Britain participates inwards the latter Regulation, but non the former, since it could only receive got access to Schengen immigration alerts if it fully participated inwards the Schengen rules on the abolition of internal edge controls. On electrical flow plans, this volition tumble out when hell freezes over.
The SIS II Decision provides for sharing ‘alerts’ on 5 primary categories of persons or things: persons wanted for arrest for give upwards or extradition purposes (mainly linked to the European Arrest Warrant); missing persons; persons sought to assistance amongst a judicial procedure; persons in addition to objects who should live bailiwick to discreet checks or specific checks (ie constabulary surveillance); in addition to objects for seizure or usage equally evidence inwards criminal proceedings. There are also rules on the telephone commutation of supplementary information betwixt law enforcement government after a ‘hit’. For instance, if the Great Britain government notice that a European Arrest Warrant has been issued for a specific person, they could enquire for farther details from the authorisation which issued it.
On the other hand, the SIS does not, equally is sometimes thought, render for a reason for sharing criminal records or diverse other categories of criminal law data, although the European Union has laid upwards some other databases or information telephone commutation systems dealing amongst such other types of data. (On criminal records inwards particular, come across my before weblog post service here). The primary indicate of setting upwards the second-generation organization was to extend the SIS to novel Member United States of America (although inwards the halt a novel organization wasn’t genuinely necessary for that purpose), in addition to to render for novel functionalities such equally storing fingerprints, which volition probable live position into effect inwards the close future.
In practice, the UK’s participation inwards SIS II is probable to outcome inwards the Crown Prosecution Service receiving to a greater extent than European Arrest Warrants (EAWs) to process, in addition to inwards to a greater extent than efficient processing of EAWs which the Great Britain has issued to other Member States. It volition also live easier, for instance, to depository fiscal establishment tally on whether a auto or passport stolen inwards the Great Britain has ended upwards on the continent, or vice versa.
Broader context
As noted already, spell the Great Britain is only at in 1 trial joining the SIS, the System has been roughly for many years, in addition to has proved to live the precursor of many European Union measures inwards this field. Indeed, equally European Union surveillance measures go, the SIS turned out to live a ‘gateway drug’: the friendly puff that led inexorably to the cleft den of the information retentiveness Directive.
Of course, interferences amongst the correct to privacy tin live justified on the reason of earth involvement inwards enforcement of criminal law in addition to ensuring world security – if the interference is proportionate in addition to inwards accordance amongst the law. Compared to (for instance) the information retentiveness Directive in addition to the planned rider mention records system, the SIS is highly targeted, focussing only on those individuals involved inwards the criminal law process, or constabulary surveillance, or banned from entry from the EU’s territory. The legitimacy of the organization hence depends upon the accuracy in addition to legality of the personal information placed inwards to it, in addition to the connected information protection rules. On this point, the European Union in addition to national information protection supervisors receive got reported that many information subjects attain non fifty-fifty know virtually the information held on them inwards SIS II, in addition to they receive got produced a guide to assist them amongst accessing their information inwards the system.
There’s an inevitable tension betwixt the EU’s destination to laid the world’s highest information protection standards, on the 1 hand, spell also developing multiple huge databases, information telephone commutation systems in addition to surveillance laws, on the other. It’s equally if the brains of the utilitarian Jeremy Bentham in addition to the libertarian John Stuart Mill were both battling for command of the same torso – forcing it to depict upwards plans for the Panopticon at the same fourth dimension equally it was storming the Bastille. If this tension manifested itself inwards fiction, it would belike accept the shape of a comedy virtually a vegetarian butcher, or a virgin porn star. But the request to ensure that measures to protect our security attain non withdraw all our freedom is non a laughing matter.
*This weblog post service is linked to ongoing question on the upcoming 4th edition of EU Justice in addition to Home Affairs Law (forthcoming, OUP).
Image credit: nytimes.com
Barnard & Peers: chapter 25
